Telcos seek wiretapping immunity as legal pressure mounts

The Electronic Frontier Foundation has offered its help to FCC Chairman Kevin …

Always eager to lighten the load of overworked bureaucrats, the Electronic Frontier Foundation has volunteered its services to FCC Chairman Kevin Martin. In a Wednesday letter, EFF legal director Cindy Cohn urged Martin to heed Rep. Ed Markey's request for an investigation into alleged lawbreaking by the nation's largest telecommunications carriers. Noting that EFF has been deeply involved in the controversy from its outset, Cohn offered to assist Martin in investigating the allegations.

As we reported last week, Markey has been urging Martin to act for more than a year. Thus far, Martin has declined to launch an investigation, citing the risk that it could reveal state secrets. But in her letter, Cohn notes several recent developments that undercut those concerns. Administration officials have made several on-the-record statements confirming the existence of a domestic surveillance program and the involvement of major communications firms. And recent court decisions have confirmed that the state secrets privilege does not preclude investigations by regulatory bodies.

The list of allegations continues to lengthen. There are now severallawsuits under way concerning the NSA's domestic spying program. In addition, recent revelations have suggested that major carriers turned over customer data in response to the FBI's "exigent letters" despite the fact that those letters are not authorized by statute. Cohn notes that EFF's intimate involvement in both of those controversies makes the organization ideally situated to help the FCC begin an inquiry.

Cohn quotes section 222 of the Communications Act, which says that telecommunications carriers may not "use, disclose, or permit access to individually identifiable customer proprietary network information" except as required by law. It appears that neither the NSA's domestic spying program nor the FBI's "exigent letters" were authorized by statute, suggesting that AT&T, Verizon, and other communications providers broke the law if they provided information to the government in response to such requests.

In his answer to Markey's initial letter last year, Martin argued that "the classified nature of the NSA's activities" precluded an FCC investigation. But in Wednesday's letter, Cohn emphasized that the FCC wouldn't need to probe the details of the NSA or FBI's activities; merely disclosing subscriber information to the government violates the law, regardless of what the government subsequently does with it.

In an ideal world, the FCC would make it a high priority to investigate allegations of repeated lawbreaking by companies under its regulatory authority. But it seems unlikely that Martin, a Republican who has already seen his share of controversy, will wade into an issue that could be both politically explosive and embarrassing to some members of his own party. Rather, the best hope for meaningful oversight lies with Democrats in Congress and with the courts.

Telcos launch lobbying campaign

Meanwhile, Newsweekreports that large telecommunications carriers have launched an aggressive lobbying effort for a "get out of jail free" card. The Ninth Circuit heard arguments last month about whether lawsuits against AT&T could go forward, and the court could hand down its ruling at any time. The judges hearing the case seemed skeptical of the government's argument that the state secrets privilege required that the lawsuits be dismissed at the outset. AT&T officials are afraid that an adverse ruling could put them on the hook for billions of dollars in damages.

The telcos' lobbying efforts are supported by intelligence officials in the Bush administration, who argue that without retroactive immunity, communications companies will be unable to participate in surveillance programs that are essential to national security. "It's not an exaggeration to say the U.S. intelligence community is in a near-panic about this," one communications industry lawyer told Newsweek.

In Congressional hearings on Tuesday, assistant attorney general for national security Kenneth Wainstein argued that it's "fundamentally unfair" that a company providing information to the government "face tremendously costly litigation and maybe even crushing liability for having helped the United States government in a time of need."

But that seems backwards. If the laws now on the books impede activities that are necessary to protect national security, the Bush administration should have approached Congress with a request to change the law. The Bush administration and the telecommunications carriers seem to be admitting that instead, they simply ignored any laws they found inconvenient. If Congress now enacts legislation giving telcos blanket immunity for their past actions, the companies will have even less reason to comply with the law in the future. If Congress wants the law to have teeth, it cannot give companies a free pass for past lawbreaking.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.